Jackson ex dem. Stoutenburgh v. Murray — 7 Johns. 5

Majority

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Jackson, ex dem. Stoutenburgh and others, against Murray.

NEW-YORK,

Nov. 1810.

Headnote

The boundary of the tract of land on J\rew° Yorfc island,called Gregory’s Plantation, is not to be construed to extend west of the old Parlaem road.

Where an agreementfor the sale and conveyance °f a piece of land, dated in 1689, was prodence, the jury isog, ^tn'^preí an^pursuanttó the agreement.

An old patent or grant, after the lapse of 160 years, will not he allowed to be located, or extended beyond the actual and notorious possession and location of the party, especially where there is the slightest evidence of an adverse possession for above 20 years. p

In all cases of any uncertainty in the location of patents and deeds, courts hold the party to his actual location.

Government is never to be presumed to grant land twice; and where K., who purchased, in 1689, land granted to S. in 1667, took out a patent in 1671, which included land said to be covered by the first patent, the persons deriving title under K. were estopped to say, that the location of the first grant extended so as to include any part covered by the second patent.

THIS was an action of ejectment, for land in the city of New-York. It was tried at the sittings in New-York, in June, 1809, before Mr. Justice Spencer.

The plaintiff, in support of his title, gave in evidence letters patent from governor Nicholls, dated 26th January, 1667, which recited a former Dutch patent, granted by Governor Kieft to Henry Piers, of a piece of J v J 7 r land, with a plantation thereon, upon the island of Man h attan, commonly called Gregory s Plantation, “ stretching between Peter Lynde's plantation, and the creek or kill there where the water runs over the rock, containing in breadth, towards the East River, seventy-five rods,

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then going by the river north-east and south-west, so into - the woods, north-west and south-east, to the fence of a certain plantation, known by the name of the Schepre’s Plantation. It is in length to the said creek or kill, one hundred and eighty-seven rods and five feet; then along between Peter Lynde’s and Gregory’s, one hundred and ninety rods, and behind, into the woods, in breadth, seventy-five rods—“ which said patent, or ground brief, being dated the 15th May, 164/, was, upon the 28th March, 1651, with the knowledge and consent of the governpr, made, over, by the said Henry Piers, unto Peter Stoutenburgh,” &c. and the same was confirmed, by the new patent, to Peter Stoutenburgh, his heirs, &c.

The plaintiff also gave in evidence two papers in the Dutch language, and a map, found in a. trunk of the deeds and documents of the Kip family; one of which was a paper dated 29th December, 16/9, signed by Peter Stoutenburgh and Jacob Kip, concerning the leasing of the land, &c, west of Kip’s land, and east of the land of William Beekman, called Peter Van Lind’s Plantation, to the said Kip for eight years, at ten guilders a year. The other-paper between the same parties, was dated March 25th, 1688—9 and related to a purchase of'-.the same .land, for 1,400 guilders. These papers were translated by Mr. Van Ingen of Albany, who had been employed to translate the Dutch records in the office of the secretary of state. The map was dated the 29th June, 1699, and purported to have been made by Augustus Graham, surveyor-general of the colony of New-Tork. The map was proved? by Charles Clinton, a surveyor, who had frequently seen maps purporting to be made by the same surveyor-general. This evidence ' was objected to, but admitted by the judge. The plaintiff also proved, by two surveyors, the existence of an ancient fence, which had been, immemorially, a partition fence between the tracts of Stoutenburgh and Beek

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man* and which was crooked in different places, so as to . . vary its course several degrees, lhe same witnesses also proved the existence of a remarkable rock, near the mouth of a creek running from a pond near the premises in question, to the East River; near which rock, the water of the creek runs into the river; and that it answers the description of the rock mentioned in the Dutch patent, better than any other, and, in their opinion, was, no doubt, the rock intended; though there are several other places in the creek, where the water runs over the stone, in a remarkable manner. That in locating Stoutenburgh's premises, reference was had to the ancient fence, as an established boundary, and to the said vock, as a fixed object; and the courses and distances corresponded with that located in the patent, which, the surveyors were of opinion, was the only true location; and that according to this location, made with peculiar care, the premises in question were included within the patent to Stoutenburgh.

The plaintiff further proved, that all the land lying east of the fence on the highway, had been enclosed, and in the possession of the Kip family, from time immemorial. The heirship of Kip, one of the lessors, was also proved. Abraham Van Gelder, aged 92 years, a witness, stated that old Samuel Kip made bricks near the pond; but he could nót testify that-the Kip -family - exercised any acts of ownership 'over any- lands lying; ; . west of the Harlaem road.

The defendant then niovqd for a nonsuit, which was refused by the judge, on the 'ground that the jury might presume a grant from Stoutenburgh to the ancestor of Kip, the lessor, for all the lands included in his patent, though he appeared to have possessed only a part of them.

The defendant then showed title under the corporation ©f New-Tork, partly by a deed in fee, dated 35th Fc

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bruary, 1799, and partly by a lease, dated the 8th day of November, 1803, for the term of 21 years.

The defendant also, gave in evidence the charter of the city of New-York, of 1730, reciting the former charter granted by Governor Ñongan, dated the 22d April, 1686, in which a grant is made to the corporation jq£ all the waste, vacant, unpatented and unappropriated lands, within the city, and on Manhattan island; also a map of thirty-one lots, and a sale at auction of the leases of the lots, made by order of the corporation, in July, 1763; but no possession was taken of the lots, until after the sale to the defendant, in 1799. It was also proved, that the highway, or Harlaem road, had run as it now does, for more than sixty years ; and that the fence of Kip was on the east side of the road during that time, and the south-west corner of the fence did not come up to the road. That many persons made bricks round the pond, before the war. Two surveyors made a map of a survey, locating the patent of Van Linden and Piers, which corresponded with the defendant’s map.

The defendant also gave in evidence, a patent, in 1671, to Jacob Kip, under whom the plaintiff claimed, for a piece of waste land, bounded on the north-west side by the old highway, and between the land of Holmes and Peter Stoutenburgh, and bounded on the •north-east and south-west sides, by two small creeks or kills, &c. and also several old maps, &c.

The defendant contended, 1. That the corporation bf New-York had been in possession of the premises in question, more than 20 years before the commencement -of the present suit; 2. That the patent to Stoutenburgh, did not include the premises. On the part of the plaintiff, it was insisted, that the patent to Stoutenburgh did cover the premises; and that no adverse possession had

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been shown, sufficient to bar the plaintiff’s right of re- ’ r ° eovery.

The judge charged the jury, that he did not think-such a possession was proved in the corporation of HewXork, or their assigns, as would toll the entry of the lessor of the plaintiff, if he had shown a title, though this title had remained dormant, and no actual possession in the lessors proved > that if the survey of Graham Was considered as exhibiting the measure that was in use, the patent to Stoutenburgh would, in the south part, extend to the east of the Harlaem road; that if the transaction was recent, he should-incline-to this construction j- and think the patent might be rolled out; but there was one fact in the case, in favour of the defendant, which, in.Ms opinion, ought to control the verdict. The government could not be presumed to grant land twice; that the grant to Kip for all the land between the creeks, was only four years after the grant to Stoutenburgh, and purports to be founded upon a survey of the surveyor-general, and covers all the land claimed by the plaintiff’s construction, lying north of the lower creek, and east of the Harlaem road.

The jury found a verdict for the plaintiff.

A motion for a. new trial was made, on the part of the defendant, on the following grounds.

1. That the. plaintiff, is not entitled to recover, because he does not show a title from Henry Piers, the original patentee, to Stoutenburgh, under whom the ' plaintiff claims.

2. That the plaintiff shows no conveyance from Stoutenburgh to Kip, through whom he derives his title.'

3. The plaintiff proves no possession, or right of en- ■ try, within twenty years; but on the contrary, the de->

Cendant shows an adverse possession.

4. That the grant to Piers, or the confirmation to Stoutenburgh, includes no part of the premises in question.

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q. That the grant to Beekman, and the map, purporting to be .made by Augustine Graham, ought not to-have been admitted in evidence.

6. That the verdict is against law and evidence*

Colden and Hoffman, for the defendant

Harison and Emmet, for the plaintiff.

delivered the opinion of the court* The lessors of the plaintiff have shown a title under the patent of Governor Nicholls, in 1667, to the lands-. covered by the former Dutch patent, and known by the name of Gregory’s Plantation. There was abundant reason for the jury to presume a conveyance from Stout-enburgh to Kip. On- that point there can be no controversy. The great point is, the location of the patent* If it was a recent case, and we were to follow the words of the patent, I might, perhaps, concur in the location of the plaintiff % but there are several strong reasons why we ought, at least, to doubt, and why we ought not, at this late day, to admit the claim of the plaintiff. The old Dutch patent speaks of the plantation as stretching between Peter Lindo’s plantation, and the creek or kill, and that it was in length “ tó the said'' creek or kill,” 187 rods,' &c. It no where speaks of crossing the creek, but the creek is twice mentioned, as being an exterior boundary. There is also a great uncertainty as to the real extent or kind of measure used and-intended in the grant, and as to" the commencement of Lindo’s patent at the mouth of the Ouder-rack creek* The ancient fence between the Lindo and Gregory plan* tations, was very crooked; and nothing can be more vague than a place on the creek, “ where the water runs-over the rock.” To undertake now, to locate so vague a-description as that contained in this Dutch patent, issued-above 160 years ago, and to carry that location further

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than the parties in interest had ever located it, by any actual pedis possessio, or mark of ownership, from its date to this day, appears to me to be dangerous and inadmissible. The parties ought not now to go beyond their ancient fences, or actual and notorious location; and especially, if there has existed the slightest marks of adverse possession, for above 20 years, on the ground to which they now wish to advance. In this case, the sales by the corporation, in 1763, were acts of ownership of lands lying west of the old Harlaém road, and now covered fay the plaintiff’s location. That the persons under whom the lessors claim never carried their actual possession west of the old road, is a fact beyond dispute. This ought, in such a case as the present, to be considered as a practical location of the patent, by the party who claimed under it.

In all cases of any uncertainty in the location of patents and deeds, courts hold the party to his actual location i and we cannot admit of such an excuse as “ a remarkable inactivity and negligence” in the ancestor. Every difficulty, and every doubt, ought to be turned ¡against the party who now attempts to push his location beyond the road, after having, for such an enormous lapse of time, confined the actual location to the east side of it. As to the N. E. side of Gregory's plantation, we are necessarily deprived of evidence of the location which the parties would have originally given to it, from the circumstance that Kip, who purchased this plantation from Stoutenburgh, had already taken a patent for land lying over the creek. This fact appears to me, as it did to the judge at the trial, of decisive weight in the controversy. The government, in 1671, and all parties in interest, knew better, at that day, than we can pretend to know, what was the true location of Gregory's plantation. The premises lay almost under the daily observation of the government, and of the claimants. The original patent, in 1647, was of a

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piece of land then known and distinguished as Gregory’s' *L . , , . , , , Plantation, and it probably then had its bounds on the East River, designated by notorious occupancy. The very term used denoted an inhabited spot; and 20 years afterwards, when the notoriety of the plantation and of its bounds, must have increased, the patent of confirmation uses the same description. After this we find the ancestor of the plaintiff, suing out a patent for a piece of waste land, lying between Holmes’s land and this very plantation of Gregory, and bounded on the N. E. and S. W. sides, “ with two small creeks or kills, and on the N. W. by the old highway.” It is ’manifest that this, tract was bounded on the S. W. side by the patent of Stoutenburgh; and yet it is described to be bounded by a creek ; a decisive proof that Gregory’s Plantation was not then understood to pass the creek, however plausibly the contrary construction may now appear.

Upon the whole, the attempt now, for the first time, to extend Gregory’s Plantation west of the old Harlaem road, is not to be permitted; and the verdict ought to be set aside, and a new trial awarded, with costs to, abide the event of the Suit;.